Boag and Department of Family and Community Services - [2000] AATA 660

DECISION AND REASONS FOR DECISION [2000] AATA 660

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/0448

GENERAL ADMINISTRATIVE DIVISION          )
           Re      STUART BOAG
  Applicant
           And    DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member
Dr C. Re, Member

Date4 August 2000
PlaceMelbourne

Decision The decision under review is affirmed.

..…Sgd. Mr J. Handley…..
Senior Member

SOCIAL SECURITY: Disability Support Pension; refusal; Table 21; epilepsy and fibromyalgia; decision affirmed.

Administrative Appeals Tribunal Act s37
Social Security Act 1991 s94

REASONS FOR DECISION

4 August 2000 Mr J. Handley, Senior Member
Dr C. Re, Member

The applicant applies to review a decision of the Social Security Appeals Tribunal (SSAT) made on 22 March 2000. The SSAT then decided to affirm a decision previously made by the respondent to reject his claim for Disability Support Pension.
The hearing of this appeal was conducted in Wodonga. Mr Boag appeared unrepresented. Mr Carson represented the respondent. We received into evidence a number of documents supplied by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act. Additionally, Mr Boag arranged for Mr Sandstrom, his former treating neurologist of Brisbane, to forward a report dated 24 July 2000 with respect to treatment and his opinion of the applicant at last consultation in October 1999.
Qualification for disability support pension is governed by s94 of the Social Security Act 1991. There was no dispute that the applicant had a physical, intellectual, or psychiatric impairment. It was also conceded that the applicant was greater than 16 years of age and was an Australian resident. The only issue in dispute was whether the applicant had an impairment of 20 points or more under the impairment tables (found at Schedule 1B of the Act) and whether he had a "continuing inability to work".
The applicant is presently 30 years of age. He was formerly a resident of Queensland but moved to Yarrawonga in 1999 following the death of his father. Prior to his father's death Mr Boag was in receipt of a Carer's Pension. Mr Boag had been caring for his father prior to his demise. He moved to Yarrawonga to live with an uncle and an aunt where he continues to reside.
Mr Boag suffered a severe head injury and skull fracture when he was ten years of age. He returned to school but commenced to suffer neurological symptoms when he started work as a truck driver. The symptoms have been epileptic in nature involving seizures and muscular spasms. The precise diagnosis is not clear to us from the medical evidence lodged within the papers filed by the respondent. Mr Boag has had extensive specialist neurological treatment, including brain scans, which have produced differing opinions.
Nonetheless, Mr Boag told us that he initially suffered three or four epileptic seizures per week for which he consumed considerable quantities of prescribed medication. In the last six months he said he has had four major seizures which he described as "disturbances". Additionally he also suffers "jolting", mainly when he is asleep.
Mr Boag described his "seizures" initially as incapacitating him for two days where he would thereafter feel groggy and in pain. The pain was located in his arms, legs, face and jaw. The extent of pain in his face and jaw particularly affected his sleep. He has also experienced shaking in his hands and said that he felt "lousy" most of the time.
Fortunately it would seem that his condition is improving to the extent that in the last six months he has had four disturbances. He describes these events as a headache type pain at the front and left side of his head which he regards as a warning. He then immediately sits and ensures that he does not lie down. He said that he had been told to remain seated but certainly not to adopt a prone position. He was unable to recall the duration of these events but did recall one episode where he was "out for eight hours". There have been occasions where he has fallen and suffered resulting pain to his arms and legs. On the occasions that he suffers "jolting" he experiences pain later in his head and neck and shoulders.
Mr Boag is independent to the extent that he is able to shower and dress without assistance. He does not drive motor vehicles at the insistence of his medical practitioners. On a day-to-day basis he helps his uncle with his garden in Yarrawonga, he listens to music but watches little television. He has no hobbies. His past employment has been as a truck driver and as a service station proprietor in Queensland. Mr Boag walks regularly up to three kilometres on each occasion. He presently receives New Start Allowance and provides certificates to the Wangaratta Centrelink Office provided by Dr Maiden in Yarrawonga.
At about the time that this claim for Disability Support Pension was made Mr Boag was also suffering symptoms which were later diagnosed as Fibromyalgia. Apparently it was not clear whether the muscular pains from which he suffered were associated with his neurological injury or were a separate and distinct injury. Nonetheless the SSAT determined as a fact that he did suffer Fibromyalgia as a separate condition but did not assess that condition because that condition had not been a "fully documented diagnosed condition which (had) been investigated, treated and stabilised" (refer paragraph 4 Schedule 1B of the Act).
Mr Boag told us that the Fibromyalgia affects him daily. He says that he has pain in his legs arms and shoulders worsened by bending and lifting.
The SSAT assessed the "seizures" under Table 21 as involving mild to moderate symptoms which were short in duration and mild in severity. Mr Boag disagreed with these conclusions because the major epileptic seizures that he said he had suffered from time to time were of greater severity than a description of mild or moderate. Additionally, he said that the effects of these seizures were not short in duration.
Mr Carson submitted that the entitlement to Disability Support Pension should be determined as at the date of the applicant's claim. At that time it would appear that the frequency of the epileptic type events were more frequent than are currently suffered yet conversely it would appear that the Fibromyalgia has now been fully investigated, treated and stabilised. Mr Carson submitted that the decision under review should be affirmed, however, if the applicant was of the view that the condition of Fibromyalgia should be considered that he should make a new application.
Conclusion And Reasons For Decision
The appropriate table under Schedule 1B to assess the extent of the applicant's impairment was agreed to be Table 21 entitled "Intermittent Conditions". We are satisfied that Table 8 entitled "Neurological Function; Memory, Problem Solving, Decisions Making Abilities and Comprehension" was not appropriate in the present application.
In an attempt to determine the extent of impairment under Table 21 we had regard to the medical reports and assessments found within the T documents. The applicant has been assessed by doctors on a number of occasions for the purposes of qualification for Disability Support Pension in late 1999 and early 2000. The assessments within the T documents have been completed by Dr Rock, Dr Christie and Dr Sandstrom in Queensland. In Victoria, reports and assessments have been completed by Dr Drago, Dr Vrig and Dr Maiden.
When attempting to correlate the conclusions and the opinions expressed by these doctors we can find no consistent theme or pattern. The doctors differ in their diagnosis and description of injury. There is a divergence in opinion also as to whether the condition/conditions from which the applicant suffers affect him on a long term or temporary basis and in so far as the applicant has been assessed with respect to his capacity to work and/or obtain employment or undertake rehabilitation, there are differing expectations of the doctors.
In the circumstances, we have decided for the purposes of determining any impairment under Table 21, to assess the applicant as best we can on the available medical evidence but more so on the evidence of the applicant at the hearing and our observations of him.
Table 21 involves a four stage process of regard being given to the severity and duration of an "intermittent attack" and then applying a grading code from which an impairment rating may be assigned.
With respect to Table 21.1 we would assess the severity as achieving a level of "3". The criteria against this level is "loss of efficiency is discernible in many every day activities. Some elements of self care are restricted but in most respects independence in retained. Bed rest is often necessary during an attack". Having heard and observed the applicant we are satisfied that the applicant has lost efficiency to the extent that he (on his own description) feels "lousy" and suffers pain. We have had some difficulty distinguishing the pain he described between the Epilepsy and the Fibromyalgia, nonetheless the applicant consumes significant quantities of medication which impair his efficiency yet – apparently – reduce the incidence of epileptic attacks. He remains largely independent and whilst he is required to bed rest from time to time he told us that he chooses to sit and remain upright when he is aware of the onset of an epileptic attack. He told us that he had been advised not to remain prone in bed as he anticipated the onset of an epileptic seizure. We have for the purposes of this criteria rated his decision to be seated as the equivalent of "bed rest" (being often necessary during an attack).
With respect to Table 21.2 Mr Boag was unable to tell us of the duration of his epileptic attacks although he did say that he had been advised that there was one episode in the last six months where he had been told that he had been incapacitated for in excess of eight hours. The duration of the attack – as opposed to the subsequent after effects – would appear to attract the description of "medium" being "lasting from 30 minutes to four hours". We have chosen this description in preference to the description of "short" against which is the criteria of "lasting more than five minutes but less than 30 minutes". Doing the best we can on the description given by the applicant and having read the medical reports and other records filed, the duration of the epileptic events would appear to be greater than the criteria of between five minutes and 30 minutes. Except for the one recent event of an attack being described as lasting for eight hours we can find nothing which would permit us to make a finding of "prolonged" under Table 21.2 against which is the criteria of "lasting more than four hours".
The above findings of level 3 under 21.2 and a description of medium under Table 21.2 attracts a severity grading code under Table 21.3 of "D".
In applying that grading code to Table 21.4 we have chosen the frequency in the assignment of a rating of "20+" affected days per year. This is because in the last six months of 1999 the applicant was variously described as having about ten epileptic seizures per 12 months. In the first six months of this year he described four epileptic seizures. In calculating the frequency of affected days per year we have taken account of the duration of the attack and the subsequent incapacity or malaise. On the applicant's evidence he said that he is largely incapacitated for up to two days after each attack. His present estimate of four seizures in the last six months would convert to an average of eight seizures in 12 months. This is close to the previous estimate given in 1999 of ten seizures in 12 months. An estimate of eight to ten seizures per year precipitating an incapacity of about two days each would justify an impairment rating of 5 against a severity grading code of D in Table 21.4.
It follows that, for the purposes of this review, we are satisfied and find as a fact that the appropriate impairment rating for the purposes of s94(1) of the Act to be 5 impairment points.
If the description of duration under Table 21.2 (refer para 20) is more appropriately assessed at "Prolonged" the rating to be assigned under Table 21.4 would continue to be 5. If the affected days per year was "40+", with a duration description of "Prolonged", the applicant would achieve an impairment of 10. Despite these many variations the applicant cannot achieve 20 impairment points.
Having regard to the minimum criteria under this sub-section, the applicant is unable to qualify for Disability Support Pension. That is to say that sub-section provides a minimum impairment rating of 20 points.
By reason also of the qualification for Disability Support Pension being a minimum of 20 impairment points and an inability to work, we have decided that assessment of the applicant's inability to work is not required because the applicant cannot satisfy the minimum impairment rating.
It follows that although we have found that the applicant does attract impairment points under Table 21 the applicant does not however satisfy the qualifying criteria of s94.
The decision of the SSAT with respect to ineligibility for Disability Support Pension is affirmed.

I certify that the twenty eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  26 July 2000
Date of Decision
Counsel for the Applicant        Not Represented
Solicitor for the Applicant
Counsel for the Respondent    Mr Carson
Solicitor for the Respondent